Boden v. Scholtz

Hirschberg, P. J.: The action is brought to recover damages for personal injuries ¿sustained by the plaintiff through the falling of a ceiling, in the din [2] ing room of an apartment which she had rented from the defendant. The complaint alleges and evidence was given tending to prove that the defendant had agreed to repair the ceiling, and that'the injury-resulted from his breach of that contract. The obligation being wholly contractual, no action in tort will lie for a violation of the agreement. (Schick v. Fleischhauer, 26 App. Div. 210; Frank v. Mandel, 76 id. 413; Goldberg v. Besdine, Id. 451; Goluback v Almodo, 79 id. 636; Stelz v. Van Dusen, 93 id. 358.) The general rule is that an action for negligence can only be maintained when the violated duty is one which is imposed by law. The learned counsel for the appellant concede in their brief that-no liability in tort attaches to the defendant for his failure to fulfill fhe covenant, but contend that he' was liable on the theory that the injury resulted from a defective condition in the roof of the building which was under his control and of which defective condition he had ample notice. - Assuming that the defendant was obliged by law to keep the roof in repair, it is a sufficient answer to the appellant’s contention that there was. no evidence given establishing either that the fall of the appellant’s ceiling resulted from a defective condition in'the roof of the building or that the defendant had notice of such defective condition. Moreover, the claim now insisted on. was not presented at the trial and the general rule is that a party must be held oh appeal to the theory of the trial. (Home Ins. Co. v. Western Trans. Co., 51 N. Y. 93; Drucker v. Manhattan Railway Co., 106 id. 157; People ex rel. Warschauer v. Dalton, 159 id. 235, 237; Snider v. Snider, 160 id. 151.) The judgment should be affirmed. Present — Hirschberg, P. J., Bartlett, Woodward and Jenks, JJ. Judgment unanimously affirmed, with costs.